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Surveillance & Lavabit: ‘the Gag’ on the Gag

September 5, 2013

This one really got my attention. Lavabit, a small encrypted email service, was shutdown a few weeks ago by its owner, Ladar Levison, because… well, he can’t actually say why. The post on his company’s website hints at the reason, expressing his wish to not be “complicit in crimes against the American people”, and stating he cannot “legally share … the events that led to [his] decision” even though “the first amendment is supposed to guarantee the freedom to speak out in situations like this.”

Another ISP provider, Silent Circle, also shut down abruptly. Its CEO said “There was no 12-hour heads up. If we announced it, it would have given authorities time to file a national security letter (NSL). We decided to destroy it before we were asked to turn (information) over.”

I hadn’t encountered this particular story through my usual news sources, and tripped over it a few days ago online. Despite his government directive of silence, Mr. Levison has given a series of interviews that ended up exclusively online (excepting PBS’s Democracy Now!, which also aired on TV). In each, Mr. Levison kept his lawyer close by to ensure legal lines weren’t crossed while letting the public know, as much as he could, what is happening.

And what that seems to be is- the government is using its powers, in matters of privacy and surveillance, to a degree significantly greater than has been exposed in the media. As The Guardian put it, Levison is “stuck in a Kafkaesque universe where he is not allowed to talk about what is going on, nor is he allowed to talk about what he’s not allowed to talk about without facing charges of contempt of court.” ‘The gag’ on the gag (order).

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In the Democracy Now! interview, Mr. Levison states “There’s information that I can’t even share with my lawyer.” His lawyer, Jesse Binnall, says: “Ladar is in a situation where he has to watch every word he says … for fear of being imprisoned. We can’t even talk about what the legal requirements are that make it so he has to watch his words. … And that’s [the] fear that led the founders to give us the First Amendment in the first place.”

In the various interviews, Mr. Levison alludes to the existence of a Lavabit account in the name of Edward Snowden that he was “made aware of” only after the Snowden story broke. On the obvious aspect that encrypted email services are attractive to criminals, Levison says authorities did ask him on a couple dozen occasions to hand over information on certain users, and he did. He states: “I never intended the service to be anonymous. There are things that I could have done that would have catered to criminals that I would not do. I was always comfortable turning over what I had available.”

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Over the summer, as the (mostly print) news media’s tentacles reached further and further into the NSA story, reports of legal pushback by tech companies (including Apple, Facebook and Yahoo) started to emerge. The SJ Mercury News cited lawsuits filed by Google and Microsoft, and a letter signed by over 60 companies and nonprofit groups- all seeking court approval to disclose more details to the public on the governments requests for customer data from them- as part of their ongoing legal struggle. While those groups sought to loosen the terms of their court orders, what seems different about the Lavabit case, is that the gag has been extended to include legal process, as opposed to just the targets of that process.

Of the many stories reported, only a handful touched on court process. In July, the NYT published an in depth piece outlining the secret FISA court, its history, and, to a limited extent, its workings. And, in addition to the above, and other articles on government resistance to tech companies efforts, the SJ Merc wrote about Yahoo’s hard won victory over the FISA court which finally agreed to declassify legal briefs, along with its ruling, in a 2008 case. Back then, the court had ruled against Yahoo’s argument that its customers constitutional protections against warrentless searches were being violated.

On the legal wranglings taking place, The Guardian writes, “Karen Greenberg, director of the Center on National Security at Fordham Law School, [says] Levison along with Snowden and others [are] at the forefront of a debate over privacy.” In the same article, it goes on, “US district judge Susan Illston [says] NSLs suffer from ‘significant constitutional defects’ and violate the first amendment because of the way they effectively gag companies that receive them.”

I consider myself a realist on what it takes to maintain national security, but this is a step too far for me. Further, it seems obvious that the government, at least partially, relies on a quiescent media to enable its strong arm tactics.

Having followed the NSA surveillance story all summer, my biggest take away is (surprise, surprise) that print media’s coverage far exceeds that of television’s, the Lavabit story being a big case in point. While all the network (ABC, CBS, NBC) and cable (CNN, FOX, MSNBC) news orgs had online reports or blogs on Lavabit, I found none on TV (other than Democracy Now!).

So, to the television news media, this amounts to one, big: Cover the Topic!

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